Opinion issued March 19, 2020

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00731-CR

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KEVIN PEOPLES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1551878

MEMORANDUM OPINION

Kevin Peoples appeals his conviction for aggravated assault with a deadly 

weapon. See TEX. PENAL CODE § 22.02(a)(2). He alleges that the trial court erred by

admitting testimony regarding his involvement in prostitution and drug dealing. We 

affirm. 
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Background

Around noon on April 28, 2016, a commercial truck driver named Alex 

Benson parked his 18-wheeler in the parking lot of a hotel and rented a room. When 

he rented the room, he was accompanied by Dixie Shirley, a woman with pink hair. 

She was known to stay with Peoples, who was a long-term resident of the hotel. 

Around 11:00 p. m. that evening, Shirley suddenly ran from Benson’s room to get 

Peoples. When she did so, Benson ran from his room to his 18-wheeler without 

putting on his shoes or underwear. Alerted that Benson was trying to run out, Peoples 

grabbed a loaded .45-caliber pistol from his hotel room, climbed an exterior

staircase, and fired three shots at Benson as he reached his rig. One of those shots 

struck Benson in the back of the head. Benson continued into his rig, got inside, and

began to drive away. 

After shooting at Benson, Peoples returned to his room and put the pistol in a 

drawer. He and Shirley then fled from the hotel in Peoples’s car. Meanwhile, 

Benson, disoriented because of the gunshot wound to his head, drove away from the 

hotel without disengaging his parking brakes. He drove for approximately one mile 

before pulling over on the shoulder of an elevated portion of the Gulf Freeway. 

Dazed, he got out of the rig’s cab and wandered the highway before falling over a 

barrier into the U-turn lane below. Motorists found him severely injured but 
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responsive and called 911. An ambulance arrived and transported Benson to the 

hospital, where he was pronounced dead. 

Investigators soon connected Benson to the abandoned 18-wheeler on the

freeway above where his body was found. They traced the tire tracks back to the 

hotel and obtained the hotel’s security video. The video showed Benson and Shirley

together renting a room, Peoples and Shirley together, Shirley and Benson running 

out of Benson’s hotel room, and the shooting. They obtained Peoples’s name and 

phone number from the hotel’s guest registration paperwork and entered the phone 

number on Facebook. The search produced a page listed under Peoples’s alias, 

“Millie Mack” and photographs of him with several women, including Shirley.

Peoples was originally charged with murder, but the charge was dismissed,

and the State charged him with aggravated assault with a deadly weapon, including

two punishment enhancement allegations in the indictment. Peoples pleaded guilty

and elected jury sentencing. After a punishment hearing, the jury found the State’s 

enhancement allegations true and assessed Peoples’s punishment at 43 years’

imprisonment. The trial court sentenced him in accordance with the jury’s verdict in 

August 2018. 
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Admission of Evidence

On appeal, Peoples argues that the trial court erred by admitting testimony 

from witnesses who stated they believed that Peoples dealt drugs and was involved 

in prostitution.

A. Standard of Review and Applicable Law

Texas Rule of Evidence 602 provides that “[a] witness may testify to a matter 

only if evidence is introduced sufficient to support a finding that the witness has 

personal knowledge of the matter. Evidence to prove personal knowledge may 

consist of the witness’s own testimony.” TEX. R. EVID. 602. Rule 701 provides that

a witness who is not testifying as an expert may testify in the form of an opinion that 

is “(a) rationally based on the witness’s perception; and (b) helpful to clearly 

understanding the witness’s testimony or to determining a fact issue.” TEX. R. EVID.

701. 

We review the trial court’s decision to admit or exclude evidence for an abuse 

of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). Under 

this standard, we may reverse the trial court only if its decision is outside the zone 

of reasonable disagreement. Id. at 83. We will uphold the ruling if it is correct under 

any applicable theory of law, even if the trial court relied on an incorrect reason for 

reaching its decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 

2009). 
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B. Testimony Regarding Drugs

Peoples argues that the trial court erred in admitting testimony from 

Christopher Gilbert, a long-term hotel resident. Specifically, when asked how he 

knew Peoples, Gilbert responded that Peoples sold “products, like marijuana and 

stuff like that” around the property. On appeal, Peoples argues that Gilbert’s 

statement should have been excluded because Gilbert did not have personal 

knowledge of his activities. The State responds that Peoples failed to preserve this 

complaint for appellate review. We agree.

To preserve a complaint for appellate review, the complaining party must 

normally make a timely and specific objection and obtain a ruling from the trial 

court. TEX. R. APP. P. 33.1(a); Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. 

App. 2014). Peoples did not object when Gilbert offered the testimony that Peoples 

challenges on appeal. He therefore waived his right to complain about the admission 

of this testimony on appeal. TEX. R. APP. P. 33.1. 

C. Testimony Regarding Prostitution

Next, Peoples contends that the trial court erred in admitting testimony that 

Peoples was involved in prostitution. The State asked Maritsa Vargas, the hotel 

manager, if she knew how Peoples made money or what he was doing at the hotel. 

Peoples’s counsel objected that the question called for speculation. The trial court 

overruled the objection, and Vargas testified that she “assumed [Peoples made 
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money by] prostitution.” Similarly, the State asked Gilbert if he knew what Peoples 

did at the hotel. Peoples’s counsel objected that the question called for speculation. 

The trial court overruled the objection, and Gilbert responded, “I think a pimp or

whatever.” Peoples contends that neither witness had personal knowledge of the 

matter and their testimony prejudiced the jury against him. 

The questions asked by the State elicited responses from each witness that 

were based on personal knowledge. Specifically, the prosecutor asked Vargas, “Did 

you know how the defendant was making money or what he was doing at the hotel?”

The prosecutor asked Gilbert, “Anything else that you are aware of that he was 

doing?” The witnesses’ responses demonstrated that they were expressing personal 

opinion based on their observations of Peoples at the hotel property. See TEX. R.

EVID. 701. The trial court did not abuse its discretion in admitting the testimony from 

Vargas or Gilbert. 

Moreover, even assuming the trial court erred in admitting the evidence, 

Peoples has not demonstrated that he was harmed by the admission of the statements. 

The erroneous admission of evidence constitutes non-constitutional error governed

by Rule of Appellate Procedure 44.2(b). Melgar v. State, 236 S.W.3d 302, 308 (Tex. 

App.—Houston [1st Dist.] 2007, pet. denied). Non-constitutional errors require 

reversal only if it affects the substantial rights of the accused. TEX.R. APP. P. 44.2(b); 

Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011). “A substantial
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right is affected when the error had a substantial and injurious effect or influence in 

determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997). We will not overturn a criminal conviction for non-constitutional error if, 

after examining the record, we have fair assurance that the error did not influence

the jury or had but a slight effect. Barshaw, 342 S.W.3d at 93–94. Error in the 

admission of evidence may be rendered harmless when substantially the same 

evidence is admitted elsewhere without objection. See Leday v. State, 983 S.W.2d

713, 717–18 (Tex. Crim. App. 1998); Anderson v. State, 717 S.W.2d 622, 628 (Tex. 

Crim. App. 1986). 

Any error in admitting Vargas’s and Gilbert’s statements that each believed 

Peoples was involved in prostitution was harmless because it was duplicative of 

evidence admitted elsewhere without objection. The State introduced numerous 

letters written by Peoples referencing his status as a “pimp.” The letters were written 

from jail to Shirley, his mother, and at least two other women. In a letter to Shirley, 

Peoples wrote a “rap” about his involvement in prostitution: “Dis [sic] is Millie 

Mack. Live out da [sic] boot. Pimping is my game, breaking hoes is what I do.” In 

another letter, Peoples wrote: “Well I’m a gentleman of legior [sic] (pimp). On my 

team is females that do what daddy say.” (parenthetical in original). The content of 

the letters demonstrated People’s involvement in prostitution in greater and more 

explicit detail than either Vargas’s or Gilbert’s testimony. Therefore, any error in 
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admitting the testimony of those two witnesses was unlikely to have had a substantial 

and injurious effect or influence upon the jury’s deliberations. We overrule Peoples’s 

evidentiary issue. 

Conclusion

We affirm the judgment of the trial court. 

Peter Kelly

Justice

Panel consists of Justices Lloyd, Kelly, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).